Culturally Responsive Alternative Dispute Resolution For Latinos

Culturally Responsive Alternative Dispute Resolution For Latinos is a
recently published report (by Steven Weller and John A. Martin, State Justice Institute / Center for Public Policy Studies (1996) ), on the need for a mediation model that accounts
for the cultural differences encountered in disputes involving Latino
families and communities, as well as the necessity of having mediators that
are aware of the cultural gaps between what the authors call the ‘Anglo
American’ society in general, and Latino families’ cultural characteristics.
This report is written in clear, nontechnical language and it is easy and
interesting to read, although it suffers from having perhaps too narrow a
focus in its research and methodology, namely the concentration of effort on
“Latinos,” strictly defined in the report as primarily Mexicans who have
been in the United States less than a generation. Of course, Latinos
encompass a huge variety of social, cultural, economic and political
backgrounds, and it would be difficult for any single work to address the
cultural impact of this fact. Nevertheless, this study provides very useful
insights and suggestions in the continuing effort to develop and use a
mediation framework that takes into account the cultural characteristics of
the rapidly expanding Latino population in the United States.

The material in this study is well presented, with a comprehensive table
of contents, an introductory explanation of how the report is organized, and
a logical placement of its findings. Section II is an assessment of dispute
resolution approaches, as it explains the characteristics of what the
authors call the Anglo-American Mediation Model, followed by a treatment of
culture and mediation. The authors use, as a framework for this assessment,
the analytical model developed by John Paul Lederach in his impressive work,
Preparing for Peace: Conflict Transformation Across Cultures, released in
1995 by Syracuse University Press and widely considered in the mediation
community as an excellent treatment of cultural issues in mediation.
Lederach was also a consultant in the project. His model consists of four
components: facets needed to aid in resolving disputes, functions or how to
accomplish the facets, forms in which culturally appropriate strategies and
approaches are made, and formulas or techniques to implement these forms.
Lederach further breaks down the role of mediators and other third parties
in social conflict into five elements: Entry, Gather Perspectives, Locate
Conflict, Arrange/Negotiate and Way Out/Agreement. This structure mirrors
the stages of a mediation session, and also recognizes the more holistic and
communal approach to conflict resolution used by cultures other than the so
called Anglo American or “mainstream” society.

Throughout the study, the use of tables to organize and summarize the
authors’ findings and models is extremely useful and practical, as the main
concepts can be digested more easily and succinctly. Of particular interest
is the presentation of the factual sources from which the authors reach
their conclusions. It is revealing that a relatively small sample of 23
English and 5 Spanish speakers that used family mediation in Phoenix,
Arizona and surrounding area were interviewed for the study, while a
slightly larger sample of 42 English and 24 Spanish speakers who did not use
mediation were interviewed for comparison. This rather low number is s. 7?y
of the interactions between Latinos, specially recent monolingual
immigrants, and the police, the courts, and social services agencies are
tinged and sometimes drenched with cultural misunderstandings, stereotypes
and assumptions that exacerbate a minor dispute into major, traumatic conflict. Situations where a child is taken away because of alleged
physical abuse, when education of differing laws and customs may suffice;
the cultural need of some Latino males to save face in the middle of
conflict being ignored; the cultural reluctance to take action in the face
of disputes with the ‘system;’ are given as examples where a more culturally
aware approach would not only help to prevent violence, but would enable the
people involved to learn to solve their problems themselves at an earlier
stage.

One important conclusion that the authors reach is that the traditional
‘Anglo’ mediation model alone will not meet the needs of Latino disputants,
due to some extent to their reluctance to air their private grievances in
public, their lack of awareness that mediation is available to them, and the
traditional tendency to bring some of their problems to trusted community
leaders in their native countries, an alternative obviously not available
here. Of course, non-Latino police officers, lawyers, judges, social
workers and others may find equally frustrating their inability to
understand the customs and behavior of Latinos, adding significant fuel to
the fire. It is interesting that the authors themselves point out that the
term “Latino” as used in the study does not encompass all people with
Spanish surnames or even all Spanish speakers, but mostly people of Mexican
origin who have lived in the U.S. For less than a generation.

The study also presents some suggestions to improve the way the judicial
system serves the need of Latino disputants. Some options, such as using
bilingual staff, signs and forms, and publicizing these services, are fairly
obvious, while more innovative offerings are the development of neighborhood
courts more familiar with the parties and cultural issues likely to arise;
the expansion of representatives allowed to assist the Latino disputants to
include trusted relatives, friends or other individuals; and a closer
relationship between the courts and community organizations serving Latinos,
to include direct help to Latino immigrants in dealing with judicial
substance and procedure, as well as neighborhood based mediation services
for cases referred by the courts. Of course, some of these suggestions have
become reality, specially in the San Francisco Bay Area, where Latinos and
other ethnic groups enjoy a limited variety of mediation services that are
free of charge for cases referred by the local courts, and where the use of
bilingual resources for non-English speakers is widely available although
not always utilized.

A very useful tool provided in the report for those interested in
cross-cultural communication is a Matrix of Cultural Issues in Family
Relationships, where the factors of language difficulty, corporal
punishment, machismo, extended family, fatalistic acceptance and herbal
medicine are addressed by listing so-called ‘indicator questions’ that
personalize the issue for a particular individual, as well as the legal
effects and possible alternatives. This Matrix is suggested specifically
for use by a social agency or other entity that is in direct contact with
Latinos. For example, the issue of corporal punishment arises when a child
may have been physically abused, and the cultural issue is addressed by the
question: “When do you think is OK to spank a child?” The apparent legal
effect of excessive corporal punishment is a child abuse charge, and one
possible alternative is parenting classes to address the cultural
differences between the parent’s own cultural norms and his relatively new
and somewhat different cultural and social environment, in which he or she
needs to function. The danger in this approach to cultural differences is
that social workers or others may be taught or may develop certain
stereotypes when confronted by, for example, Latino parents potentially
responsible of child abuse. Nevertheless, this Matrix can be useful when
applied judiciously and carefully to specific situations.

No study on Latino cultural issues would be complete without addressing
the role of the police, and the authors dutifully point out the great
cultural gap that usually exists between the police and the Latino community
in general, and the various options available to bridge that gap, including
the use of cultural sensitivity training in addition to courses in dispute
resolution, the use of Latino police officers to generate trust in the
community, and a calmer, gender specific approach with calls involving
possible domestic violence. Unfortunately, no information is provided as to
whether any law enforcement agency has successfully tried or adopted any of
these approaches.

Section IV of the study closes with the proposal of a Collaborative
Citizen Panel as an evaluation tool to use in the entire Justice System.
This panel would be composed of people from the courts, the police, social
service agencies, and the different ethnic communities being served, and
would begin a continuing dialogue between these sometimes divergent groups.
The panel would assist the agencies involved to understand the needs and
perceptions of the ethnic communities under their jurisdiction, give a voice
to these communities in addressing the need to reform certain aspects of the
justice system, and actually bringing about these reforms, so that
confidence in the ability of the justice system to deal with cultural
differences fairly and effectively is enhanced. The authors go into some
detail in how the panel would achieve these goals, including the use of
interviews, retreats, and facilitated discussions to develop action plans
and specific objectives for their implementation within a reasonable time.

The last and perhaps most valuable section of the study provides us with
an alternative mediation model for use by the Latino community. Using the
five facets of third party intervention developed by John Paul Lederach as
addressed earlier in this article, the ENTRY in this model begins with the
need to increase awareness in the target community regarding the
availability of mediation services that specifically address the needs of
Latino disputants. The authors advocate the involvement of the police,
schools, churches, private counseling agencies and the bar to get the word
out, including the need to train these entities to help them identify
disputes amenable to mediation. The authors stress the importance of Latino
attorneys in this scheme, who will be glad to know that they are expected to
be trained as mediators and work pro bono, as they presumably already have
the respect and confidence of the Latino community.

The identity of the mediator is said to be important, with local
politicians, community organizers, priests, counselors, or respected elders
joining attorneys as more suitable mediators in the Latino community. The
authors even state that “it might even be desirable for the mediator to be
familiar with the family,” a virtual negative in the so called ‘Anglo’
mediation model and usually grounds for disqualification, and that relatives
could play a more active role, another taboo in more traditional mediation
models. The authors go as far as suggesting that the mediators for this
model be trained using the nontraditional elicitive approach advocated by
Lederach. This approach empowers the trainees with the ability to create
their own model to address the cultural characteristics of the relevant
ethnic group, perhaps using components of more traditional, prescriptive
models but modifying or adjusting them to reflect their new use.

In the GATHER PERSPECTIVES portion, the authors advocate a more holistic
approach in mediations involving Latino parties, indicating that the
extended families should have a more active role in the perception of the
dispute, with perhaps the need for a home visit. Care would have to be
exercised to maintain confidentiality. Another suggestion is the use of
substantial amounts of time to allow the Latino parties to vent, even about
issues other than the actual dispute, as they supposedly have a greater need
to do so. However, it has been my personal and professional experience that
all parties benefit from venting and being heard during the first phase of a
mediation session, regardless of the ethnic or racial makeup of the
disputants, although Latinos may generally use random subjects unrelated to
the substance of the dispute as a venting outlet.

In terms of LOCATING CONFLICT, the authors again propose the use of a more
holistic approach that takes into account the Latino tendency to include the
well being of the extended family as an important interest that may even
outweigh their own individual priorities. Even individual interests may be
different from those of other groups because of the importance of saving
face and respect, specially for males, the authors maintain. In the section
of ARRANGE/NEGOTIATE, it is suggested that mediators take a more active role
in directing the discussion and suggesting solutions than is acceptable in
more traditional models. The authors cite the results of their study
indicating that 80% of the Latino disputants polled stated that their
mediators were provided most of the final solutions, as opposed to 35% of
the English speaking people polled. Moreover, when asked their expectations
of what a mediator would do for them, the authors report that the most
common response by Latinos was to “tell us what to do” or “give advice.”
The negotiation process itself may need to be more holistic, as the parties
may feel that issues that appear to be distinct may in fact be intrinsically
connected and should therefore be addressed conjunctively.

By way of WAY OUT/AGREEMENT, the authors recommend that the mediator may
have to be involved even after the mediation session has been completed, as
the parties may expect her to help them process their agreement, if any,
through the appropriate agency, as well as to oversee the enforcement of the
agreement along cultural norms. Of course, this is a significant departure
of the more traditional models and brings up a myriad of potential issues,
from confidentiality to impartiality, and even liability. A very helpful
Table of this discussion synthesizes the main components and presents it in
a simple, easy to read manner.

Perhaps the most innovating recommendation in this report is the creation
of the role of INTERMEDIATOR. An Intermediator would be a person who is not
only willing and able to mediate a dispute between Latinos, but who will
also take a more active role as counselor, educator, translator,
spokesperson and guide. The report’s authors envision someone in this role
to be involved, among other things, in “helping people work with the justice
system, defining for people what is acceptable behavior and what is not, and
promoting self-esteem, motivation and communication. ” The report further
breaks down the responsibilities of helping people work with the justice
system into essentially assisting the Latino family in navigating the
justice system, obtain services needed to bridge cultural misunderstandings,
avoid judicial intervention unless necessary, and serving as a referral
source for counseling or other services.

In terms of defining what is acceptable behavior, the intermediator’s main
role would be mainly to educate and teach about cultural practices that may
be common in their countries of origin but not accepted in this country, to
prevent the continuing pursuit of cultural practices harmful to the Latino
family, and to help people cope with the cultural embarrassment of having
their intimate family disputes and problems addressed by social agencies and
other entities. As to promoting self esteem, motivation and communication,
the authors suggest that the intermediator could help empower the wife where
her male counterpart’s behavior is unacceptable or destructive, assist the
family members in working out their differences, provide a reality check
when needed as far as facing the consequences of their behavior, and serving
as role model.

The role of an Intermediator as envisioned by the authors is certainly a
major step away from the role of mediator as most of us understand it to be,
at least at the present time. This new, expanded role would require an
almost intimate knowledge of the Latino family’s interactions, disputes and
other dynamics, not to mention the ability and desire to intervene in them
practically to the point of social engineering. While the authors’ goals in
levelling the playing field within the family’s male and female members
should be applauded, it may be that these very same members of a particular
family are comfortable in their roles, even as an outside observer may see
some acts of sexism or chauvinism. I have mediated family disputes where
this was clearly the case, and it was apparent that any attempt at changing
this dynamic would not only be met by very strong resistance by both male
and female family members, but that it would be inappropriate for us to
adopt a culturally superior attitude and assume that our way of looking at
their situation was somewhat more accurate than theirs.

While the extent of any intervention into intimate family affairs is
subject to discussion, a third party should not engage in this practice
unless it is absolutely necessary and only after gaining the trust and
confidence of the family, something that only a few individuals can attain,
thus significantly shrinking the already small intermediator pool. We
should be hesitant to do more than perhaps try to educate them as to more
serious cultural faux pas . On the other hand, this type of intervention
may preferable to the alternatives of having official or legal intervention,
carrying more severe consequences, by the police, the courts or social
agencies. The issue of prevention is also complicated by the
intermediator’s role, as this individual would essentially have to be not
only someone trained in mediation and communication skills, but also in
other important subjects like psychology, counseling, law, supervision and
cross cultural awareness.

Some of these concerns are addressed by the authors at the end of their
report, when they discuss that the intermediators would be both officially
provided by the courts, social agencies and the like, as well as privately
obtained, and that there were points of action at the informal, official and
legal level, according to the type and severity of the family dispute.
Training in dispute resolution, judicial and social agency procedures,
cultural translation and family psychology would be provided to officially
provided intermediators. Private intermediators would be allowed to assist
Latinos to the extent of their abilities, with some working merely as
translators between the justice system and the family, while more
experienced or better trained providers could help them negotiate their way
through the system. Depending at what point the intermediators intervene,
they could attempt to face the conflict first within the family and, should
that attempt fail, move on to referrals and other approaches.

If the social agencies or the courts are already involved, then the
intermediator would have a more active role as an intermediary between the
family and the intervening entity, making sure that the family ‘s interests
are understood while its members themselves understand what is happening,
how it is affecting their lives and what steps they can take to resolve the
conflict in a constructive way. The authors stress that the intermediator
may need to be someone who knows the parties and understands the dispute,
and that some of his roles could not be achieved unless this was the case.
Moreover, this same intermediator would have to be accepted by the justice
system as an spokesperson for the parties. While the local bar may consider
this suggestion as practically bordering on the unauthorized practice of
law, steps could be taken to ensure that proper legal counsel be provided
for those disputants who needed it.

The report concludes by stating that both the various justice system
entities and the Latino families that are affected by them need help in
bridging the cultural chasms that divide them, and that a well qualified
intermediator may be just the person that can help everyone involved close
these gaps. This is an ambitious goal, in light of the many obstacles
blocking the road to understanding and collaboration, such as limited
funding for these types of projects, divergence as to the best way to
proceed, the ambiguous nature of the intermediator’s role, and the perils
associated with ascertaining the cultural norms underlying people’s
behavior. This report may be more useful in fueling the dialog regarding
the most appropriate ways to achieve a society where cultural differences
leading to conflict can be bridged constructively, fairly and without traces
of sectarianism and assumed cultural superiority.

                       

John Sarmiento

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